Date: 20090223
Docket: IMM-2854-08
Citation: 2009 FC 187
Ottawa, Ontario, February 23, 2009
PRESENT:
The Honourable Mr.
Justice Shore
BETWEEN:
MANJEET
SINGH MULTANI
Applicant
and
MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND
JUDGMENT
I.
Introduction
[1]
It
is clear from reading the Board’s reasons for decision as a whole that they are
“proper,
adequate and intelligible” (Syed
v. Canada (Minister of Employment and Immigration) (1994), 83 F.T.R. 283, 50 A.C.W.S. (3d) 473). The reasons
clearly show that the Board analyzed the causes of the
applicant’s fear but found that the evidence in the record failed to prove that
he would be at risk should he return to India.
[2]
In Liang
v. Canada (Minister of Citizenship and Immigration), 2003 FC 1501, 128
A.C.W.S. (3d) 139, at paragraph 42, Justice Carolyn Layden-Stevenson explained
the duty to provide reasons for a decision:
“[T]he reasons are not to be read microscopically and held to a standard of
perfection. They must be read as a whole . . .”.
II. Judicial proceedings
[3]
This
is an application for judicial review of a decision of the Refugee Protection
Division of the Immigration and Refugee Board (Board) dated May 16, 2008,
where the Board determined that the applicant was not a “Convention refugee” or
a “person in need of protection” within the meaning of sections 96 and 97 of
the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (IRPA).
III. Facts
[4]
The
applicant, Manjeet Singh Multani, was born in 1984 and is a citizen of India,
where he lived in the village of Khatti, Kapurthala
District, Punjab
State. He is a
member of the Shiromani Akali Dal (Badal) political party in the Kapurthala District.
The Shiromani Akali Dal (Badal) political party is led by Prakash Singh
Badal and is the main political organization of India’s Sikh community. Mr. Multani’s
activities for this party were strictly local and consisted of going
door to door to convince people to vote for his party or to attend meetings. According
to Mr. Multani, he was known throughout his area for his ability to
draw votes.
[5]
Mr.
Multani alleges that, in May 2004, Jagir Singh, a supporter of
the Congress Party, visited him at his home and asked him to help his party,
which Mr. Multani refused to do.
During the 2004 election campaign,
Jagir Singh’s associates frequently approached him to ask him to work for
the Indian National Congress (Congress Party), but he continued to go door to
door in support of the Shiromani Akali Dal (Badal) party. In that election, the
Congress Party was elected to National Parliament.
[6]
Mr.
Multani alleges that, in August 2004, tension mounted between
supporters of the two parties regarding the use of school grounds for the
Independence Day celebrations. He alleges that Congress Party supporters seized
the opportunity to threaten him for not having helped them during the election
campaign. However, he managed to escape. He further alleges that he tried to
lodge a complaint, but the inspector at the police station refused to take the
complaint and accused him of lying.
[7]
Mr.
Multani alleges that, in January 2005, the police arrested him on
two occasions, claiming that he had caused problems in the village, and beat
him with leather belts and wooden rods at the prison. He also confirms that he
saw Jagir Singh with the police inspector but did not know why Jagir Singh
was at the police station. He alleges that his father and influential people in
the village secured his release and that he was treated by a physician.
[8]
Mr. Multani
alleges that, in January 2006, while he was going door to door to
ask people to attend a meeting called by his local party leaders, members of
the Congress Party, led by Jagir Singh, prevented him and his colleagues
from continuing their activities. A brawl broke out between the two parties’
supporters, but the police officers who were there did nothing. On that
occasion, Jagir Singh
told Mr. Multani that he would be among those who would suffer the consequences.
[9]
According
to Mr. Multani, two days later, his father was told that Jagir Singh, together
with the police, was planning to falsely accuse him. He therefore left home and
escaped to a friend’s house in a neighbouring village. He alleges that his
parents decided that he should leave his country to save his life; his father
contacted an agent, who got him to Russia and England, and he
returned to India twice after Russia and England, respectively, before coming
to Canada. He did not
arrive in Canada until after
July 11, 2006.
[10]
Mr. Multani
arrived in Canada on July 12, 2006,
and claimed refugee protection. He was married in Montréal in June 2007.
Impugned decision
[11]
When asked during the hearing what he feared today should he
return to India, Mr. Multani replied that he was afraid that the police
were looking for him because Jagir Singh wanted revenge on him.
[12]
However,
the Board concluded that Mr. Multani had not shown that his fear of persecution,
assessed on a forward‑looking basis, was objectively well founded. The
Board did not question the fact that he had been targeted by Jagir Singh and
his associates, supporters of the Congress Party, and that he had been arrested
by police. However, it was not satisfied that he was still specifically
targeted by Jagir Singh, Congress Party supporters or the police.
[13]
The
Board noted that, in the 2004 national elections, the Shiromani Akali
Dal (Badal) party won two seats in the Council of States and
eight seats in the House of the People, whereas the Congress Party won 145
seats in the House of the People and appointed Manmohan Singh, who is of
Sikh origin, to the position of Prime Minister. During the February 2007
elections in Punjab, the Shiromani Akali Dal (Badal) party, in an alliance with
another party, won 67 seats, and the Congress Party won 44.
[14]
Therefore,
since Mr. Multani’s arrival in Canada, the Congress Party is no longer in
power in Punjab. Since
February 2007, his political party, Shiromani Akali Dal (Badal), has been in
power in his state.
[15]
Moreover,
the Boarded concluded that Mr. Multani’s activities were strictly local
and were carried out in association with a small number of people. Mr. Multani
stated that Jagir Singh’s work for the Congress Party was also at a local
level, with a small number of people. Mr. Multani does not know whether Jagir
Singh still works for the Congress Party, and, in his opinion, the police have not
been looking for him since January 2005.
[16]
The
Board concluded as follows:
In light of all of the claimant’s
testimony and in light of the fact that since February 2007, the
claimant’s party, Akali Dal (Badal), has been in power in Punjab, the panel
concludes that the claimant has not shown that, on a balance of probabilities,
he would face a serious possibility of persecution should he return to his
country.
IV. Issue
[17]
(a) Did the Board err in failing to explain how the change
of government in the state of Punjab could affect the fear of persecution?
(b) Did the Board breach its duty of procedural
fairness by denying him the opportunity to explain in his own words the change
of government that took place and the underlying implications in his case?
(c) Did the Board err in failing to address the content of
the affidavit of the Sarpanch of Khatti that Mr. Multani filed in evidence?
V. Analysis
Standard of
Review
[18]
In light of the decision of the Supreme Court of
Canada in Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190, the issue to be decided is
whether or not the decision is reasonable. In the affirmative, this Court must
refuse to intervene and must dismiss the application. According
to the Supreme Court of Canada, the factors to be considered mostly concern
justification for the decision through its transparency and intelligibility. The
outcomes must be defensible in respect of the facts and law (Dunsmuir, at
paragraph 47).
[19]
With
respect to the duty of procedural fairness, the appropriate standard of review
is correctness (Sharma v. Canada (Minister of
Citizenship and Immigration), 2008 FC 908, [2008] F.C.J. No. 1142
(QL) at paragraph 15; also, Rivas v. Canada (Minister of
Citizenship and Immigration), 2007 FC 317, [2007] F.C.J. No. 436
(QL)).
[20]
Whether
the Board provided adequate reasons for its decision is a question of
procedural fairness for which the applicable standard is correctness (Weekes
(Litigation guardian) v. Canada (Minister of Citizenship and Immigration),
2008 FC 293, 165 A.C.W.S. (3d) 4; also, Canadian Union of Public Employees (C.U.P.E.) v.
Ontario (Minister of Labour), 2003 SCC 29, [2003] 1 S.C.R. 539).
[21]
Moreover,
not having allowed the applicant an opportunity to respond to certain concerns
could constitute a breach of the rules of procedural fairness (Bonilla v. Canada (Minister of
Citizenship and Immigration), 2007 FC 20, 154 A.C.W.S. (3d) 692
at paragraph 27; also, Rukmangathan v. Canada (Minister of Citizenship and Immigration), 2004 FC 284, 247 F.T.R. 147 at paragraph 22).
[22]
As
for the standard of correctness, if there is a
disagreement, the reviewing court will substitute its own view and provide the
correct answer. It will rather undertake its own analysis of the question and
decide whether the decision of the tribunal was correct: “From the outset, the
court must ask whether the tribunal’s decision was correct” (Dunsmuir,
at paragraph 50). Therefore, a breach of the duty of procedural fairness will
result in the decision being set aside.
(a) Did
the Board err in failing to explain how the change of government in the state
of Punjab could affect the fear of persecution?
[23]
Mr. Multani
submitted that the Board failed to explain how the change of government in the state
of Punjab could mean that he would no longer be persecuted by Congress Party
supporters. On the contrary, in Mr. Multani’s view, that he was able to
contribute to his local party’s victory in Punjab provides Congress Party
members with additional reasons for wanting to rid themselves of an opponent
who had helped to defeat their party at the state level.
[24]
The
applicant cited a passage from Syed,
above, in which Associate Chief Justice James Alexander Jerome noted
the following:
[8] The function of written reasons is to allow
an individual adversely affected by an administrative tribunal’s decision to know the underlying
rationale for the decision. To that end, the reasons must be proper, adequate
and intelligible and must give consideration to the substantial points of
argument raised by the parties.
[9] Here, the reasons set out a summary of the
applicant’s evidence, a summary of the documentary evidence considered by the
Refugee Division, followed by a conclusion which makes no reference to any of
the evidence given by the applicant. There is no mention of the applicant’s
arrest in November of 1991, the outstanding arrest warrant that was issued
against him, the threats received by himself and his family, the beating he
testified he was subjected to while in police custody, or that the billiard
club he was running was destroyed. Although it is within the tribunal’s
jurisdicition to accept or reject this information, it cannot simply ignore it.
The Refugee Division is obligated, at the very least, to comment on the
evidence adduced by the applicant at the hearing. If that evidence is accepted
or rejected, the applicant should be advised of the reasons why.
[25]
In Liang,
above, at paragraph 42, Justice Carolyn Layden-Stevenson explained the duty to
provide reasons for a decision: “[T]he reasons
are not to be read microscopically and held to a standard of perfection. They
must be read as a whole . . .”.
[26]
It
is clear from reading the Board’s reasons for decision as a whole that they are
“proper,
adequate and intelligible” (Syed, above). The reasons clearly reveal that the Board
analyzed the causes
of Mr. Multain’s fear but found that the evidence in the record failed to
prove that he would be at risk should he return to India.
[27]
First,
the Board’s conclusion clearly demonstrated that it is based not only on the political
changes in Punjab but also on
the applicant’s testimony as a whole. The burden is on applicants to establish
that their fear or personalized risk is still objectively well founded. The
Board found that Mr. Multani did not know whether Jagir Singh was
still working for the Congress Party. Thus, he did not know whether Jagir Singh
was still particularly interested in targeting him. In addition, he stated at
the hearing that the police have not been looking for him since January 2005.
Mr. Multani provided no evidence to prove that the police or Jagir
Singh would seek him out should he return to India. Absent
evidence that they are still looking for him today, it was reasonable for the
Board to find that the risk invoked by the applicant was no longer objectively
well founded. Therefore, even if one discounts the fact that his political
party was in power in Punjab, the Board’s reasons were reasonably supported by
the facts.
[28]
Mr. Multani
identified the Congress Party supporters who allegedly exerted influence over
the police as being his agents of persecution. In Hassan v. Canada (Minister of Employment and Immigration) (1992), 147 N.R. 317, 36 A.C.W.S. (3d) 635 (F.C.A.),
Justice Darrel Heald concluded:
In finding as it did that the situation
in Uganda had changed, however, it is
clear the Board was simply concluding that the appellant’s fear of persecution,
no matter how sincerely it was held, did not have the objective element
necessary to make it well‑founded. That this is so is made plain by the
Board’s decision.
[29]
Given
that the risk alleged by Mr. Multani arises from supporters of the Congress
Party, the party in power at the time, it was open to the Board to find that the
political changes in Punjab could have modified the risk to Mr. Multani should
he return to India.
(b) Did
the Board breach its duty of procedural fairness by denying him the opportunity
to explain in his own words the change of government that took place and the
underlying implications in his case?
[30]
Administrative
decision-makers are not generally required to provide applicants with
opportunities to clarify or further explain their applications (Bonilla, above, at paragraph 22).
Nevertheless, under certain circumstances, procedural fairness requires that an
applicant be given the opportunity to respond to an administrative decision‑marker’s
concerns (Li v. Canada (Minister of Citizenship and Immigration),
2008 FC 1284, [2008] F.C.J. No.1625 (QL) at paragraph 35).
[31]
The
case law is not clear regarding when an administrative decision‑maker’s
concerns must be put to the applicant where those concerns are based on the
information submitted by the applicant to the decision-maker (Hassani v. Canada (Minister of
Citizenship and Immigration), 2006 FC 1283, [2007] 3 F.C.R. 501 at paragraph
21). In Liao
v. Canada (Minister of Citizenship and Immigration), 101 A.C.W.S. (3d) 998, [2000] F.C.J. No. 1926
(QL), Justice Pierre Blais stated that administrative decision‑makers
fulfill all duties, such as giving an applicant the opportunity to respond to
concerns, when they adopt an appropriate line of questioning:
[15] Visa officers have the duty to
give an immigrant the opportunity to answer the specific case against him. This
duty of fairness may require visa officers to inform an applicant of their
concerns or negative impressions regarding the case and give the applicant the
opportunity to disabuse them.
. . .
[17] However, this duty to inform
the applicant will be fulfilled if the visa officer adopts an appropriate line
of questioning or makes reasonable inquiries which give the applicant the
opportunity to respond to the visa officer’s concerns. . . .
[32]
In
this case, the Board gave Mr. Multani the opportunity to respond to its
concerns during the hearing. Moreover, counsel for Mr. Multani addressed
the political changes in his oral submissions.
[33]
The
transcript shows that the Board asked Mr. Multani questions to determine
whether a political change would alter his risk of persecution should he return
to India:
BY PRESIDING MEMBER (to person concerned)
. . .
Q. Could you tell me when was the last
election at the federal level? When the last election has been held if you know
for the Parliament?
A. I really don’t know.
- Okay.
Q. Do you know when the last assembly or
provincial or state election within Punjab,
do you know when it has been held?
A. In May 2004.
Q. You’re not aware of the election which
has been held in Punjab in February 2007? And from my understanding that was
for the assembly, for the state. Are you aware of that?
A. No, I don’t know. At the time I was
there we were told to prepare for any forthcoming elections.
- No, it’s okay. I only want to know if
you know about the last election in Punjab.
Q. You’re not aware of that?
A. I don’t know.
Q. You’re not aware of the fact that your
party won that election within Punjab in February 2007?
A. My mother told me that that was the
case.
Q. Oh, so you know?
A. When our party won I was told, I was
informed by my mother.
-Okay.
(Tribunal Record, at pages 349-50).
[34]
That
excerpt shows that the Board took an interest in the political changes that
occurred in Punjab in February 2007.
After submissions from both sides, including questions on the political
changes and the oral submissions of counsel for Mr. Multani, the Board
asked Mr. Multani directly whether he had anything to add, and he answered
in the negative.
[35]
In
his oral submissions, counsel for Mr. Multani specifically addressed the significance
of the political changes in Punjab in February 2007:
And true, we have discussed in similar
cases in the past, you can oppose to him, well, sir, since February of 2007
it’s your party now that’s in power in Punjab. But as we’ve discussed in the past, we
have to be very careful with that, because, as you know, most of the repressive
organizations, police, army, border security, CRPF. They’re all federal
entities and it’s Congress that is in charge at the federal level. And, of
course, it’s [Manmohan] Singh, a Sikh, but I mean K.P.S. Gill was a Sikh and he
is the one that killed fifty-thousand people at the time of India’s fighting
against the insurgency in the Punjab. Many Sikhs are favourable to
Congress obviously.
So he tells you I am against the
naturally governing party in India. And the naturally government
party in India is the party that supervises
as above uses the repressive organizations against political opponents. That
essentially is his claim here . . .
(Tribunal Record, at pages 360-61).
[36]
In
that excerpt, counsel for Mr. Multani submits that the consequences of a
change of government in the state of Punjab in no way modify the risk to Mr. Multani
should he return to India. It must be recalled that the burden of proof lies in
fact with the applicant (Hassani, above, at paragraph 22). Therefore,
even though the Board did not accept Mr. Multani’s claim with respect to
the consequences of the political changes, it cannot be concluded that he was
denied the opportunity to further explain the change of government and its implications in his case.
[37]
In
his memorandum for the application for judicial review, Mr. Multani quoted
from Justice Louis Marceau’s decision in Mileva v. Canada (Minister of Employment and Immigration), [1991] 3 F.C. 398, 27
A.C.W.S. (3d) 480 (F.C.A.), where
Justice Marceau found that a decision of the Board that is based on the
political changes occurring in the applicant’s country since he or she left it
places the burden of proving that those political changes are not such as to
make the applicant’s fear of persecution cease to exist. According to Mr. Multani,
this burden of proof may be inconsistent with rules of fundamental justice, particularly
since he was apparently not questioned about the impact of such a political
change.
[38]
As
was carefully explained in the memorandum, those statements of Justice Marceau were
in obiter. They appeared as “an alternative argument of convenience”. Justice
Marceau based his conclusion on the fact that the decision‑maker at first
instance does not have jurisdiction to decide the question
of political changes.
[39]
In
any event, Justice Marceau was in the minority on that question, as the two
other judges on the bench found that a decision‑maker at first instance had
jurisdiction to consider political changes. As Justice Louis Pratte concluded
at pages 404-05:
. . . The
adjudicator and the member of the Refugee Division must decide whether it is
possible for the Refugee Division to recognize the refugee status of the person
claiming it. To arrive at this decision they must take into account any
credible evidence tending to establish the facts relevant to this question. The
fact that the political situation existing in a claimant’s country of origin
has developed in such a way as to remove the reasons causing him to fear
persecution is obviously a fact relevant to the question of whether that person
can validly maintain that he is a Convention refugee. The question raised by a
claim to refugee status is not whether the claimant had reason to fear
persecution in the past, but rather whether he now, at the time his claim is
being decided, has good grounds to fear persecution in the future. . . .
While the
adjudicator and member of the Refugee Division must consider evidence tending
to show a change in circumstances in the claimant’s country of origin, they are
not required to decide whether the change in circumstances established by this
evidence is sufficient to defeat the claim. . . .
[40]
Even
though it is not in dispute in this case, the conclusion of the majority of the
Federal Court of Appeal in Mileva was that a decision‑maker at
first instance may consider political changes.
[41]
In
the context of an issue of procedural fairness, the appropriate standard of
review is correctness. Here, the Board had the authority
to consider whether a political change affects an applicant’s risk of return. The
Board gave Mr. Multani the opportunity to answer questions about the
political changes in Punjab since his departure. His counsel addressed this
issue during the hearing. Mr. Multani had the opportunity to respond to
the Board’s concerns; it did not err in this regard.
[42]
The
Board assessed the information that Mr. Multani provided, as it was
required to do in order to reach a decision. The questions that the Board asked
and the information it obtained confirm that the Board’s conclusion was
reasonably open to it.
(c) Did
the Board err in failing to address the content of the affidavit of the Sarpanch
of Khatti that Mr. Multani filed in evidence?
[43]
Mr. Multani
submits that the evidence he filed calls for comment, particularly since the
authenticity of that document is not disputed. The Board was therefore required
to take into account the affidavit of Kuldip Singh, the Sarpanch of Khatti.
A sarpanch is the village chief. The Board did not comment on or mention this
evidence, which was subsequent to Mr. Multani’s flight.
[44]
Generally, the Board is assumed to have considered all the
evidence, regardless of whether or not it states that it did so:
. . . The fact that some of
the documentary evidence was not mentioned in the Board’s reasons is not fatal
to [its] decision. The passages from the documentary evidence that are relied
on by the appellant are part of the total evidence which the Board is entitled
to weigh as to reliability and cogency. My examination of the record before the
Board persuades me that it did, in fact, consider and weigh the total evidence
in a proper fashion. . . .
(Hassan, above).
[45]
Mr. Multani
cited Gill v. Canada (Minister of Citizenship and Immigration), 2003 FCT 656,
129 A.C.W.S. (3d) 783, in order to point out that the
obligation to comment on documentary evidence in a decision depends on the
importance of that evidence: “The Board’s duty to explain itself increases with
the relevance of the evidence” (at paragraph 16). In Gill, that Court
found that the documentary evidence ignored by the Board in question in its
reasons “bears on facts that are at the very heart of Mr. Gill’s claim” (at paragraph
17).
[46]
In Gill, the Board found that Mr. Gill’s testimony was not credible. The
documentary evidence, including the affidavit of a
sarpanch, corroborated all of the essential points in Mr. Gill’s claim. Given
the contradictions between the credibility of the testimony and the documentary
evidence regarding a central issue of the application, the evidence in Gill
was relevant, and the Board was required to comment on it.
[47]
Here, Board in this case did not find that Mr. Multani
or the facts in his account lacked credibility. Although his account was
accepted as credible, Mr. Multani failed to satisfy the Board, on a
balance of probabilities, that there is a serious possibility that he would be
persecuted should he return to India.
[48]
The Board did not err in not specifically addressing the affidavit
of the Sarpanch of Khatti in its reasons insofar as it was irrelevant to the
Board’s assessment. In his affidavit, signed July 18, 2006, one week
after Mr. Multani’s departure from India, the Sarpanch of Khatti corroborated the events that Mr. Multani alleges
occurred prior to his departure from India. The Sarpanch of Khatti noted that “the Police is still searching for
Manjit Singh and harassing his family to produce him. It is not safe for him to
come back”. However, that the affidavit was made one week after Mr. Multani’s
departure limits the probative value of that statement. The Board did not
question the credibility of his facts.
[49]
The Board’s determination was based on the assessment of
the objective component of the applicant’s fear for the future. In other words,
the Board considered whether there was a serious possibility that Mr. Multani
would be persecuted by Jagir Singh and his associates who were Congress Party
supporters, or by the police, should he return to India. The Sarpanch’s affidavit provides no evidence in this regard. Moreover,
it makes no mention of the events that allegedly occurred subsequent to the
time of Mr. Multani’s departure. Given that the facts contained in the affidavit
of the Sarpanch of Khatti were not central to the issue to be decided, the
Board was not obligated to specifically address them in its reasons.
VI.
Conclusion
[50]
The Board did not err in not addressing the change of
government in the state of Punjab that may have affected the applicant’s fear
of persecution. The Board fulfilled its duty of procedural fairness in giving Mr. Multani
the opportunity to further explain the change of government and the implications
in his case.
[51]
For
all these reasons, the application for judicial review is dismissed.
JUDGMENT
THE COURT ORDERS that
1. The application for judicial review be dismissed;
2. No
serious question of general importance be certified.
“Michel M.J. Shore”
Certified
true translation
Tu-Quynh
Trinh
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