Docket: IMM-4327-13
Citation:
2014 FC 1137
Ottawa, Ontario, November 25, 2014
PRESENT: The
Honourable Mr. Justice Diner
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BETWEEN:
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SWARNJIT SINGH SIDHU
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Applicant
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and
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MINISTER OF CITIZENSHIP AND IMMIGRATION
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Respondent
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JUDGMENT AND REASONS
I.
Overview
[1]
The Applicant is a citizen of India, who came to Canada in 2003 as a member of the Family Class. In 2010, the Immigration Division
found him inadmissible for misrepresentation and revoked his permanent resident
status. He appealed to the Immigration Appeal Division (IAD), which dismissed
his appeal. The Federal Court denied him leave to appeal the IAD’s decision.
[2]
In February 2013, the Applicant submitted a PRRA
application, claiming a fear of returning to India as a non-resident Indian
(NRI) who was wealthy and would be perceived as such. The Officer noted that
the Applicant had a house worth $200,000, which he would need to sell and take
those proceeds back to India. The Applicant submitted several internet articles
relating to the murders of wealthy NRIs.
II.
Issue
[3]
This matter raises the following issue:
1. Was the Officer’s
decision reasonable?
III.
Decision
[4]
The Officer rejected the Applicant’s PRRA
application, in which the Applicant claimed a fear of returning to India on the basis that many NRIs are killed or kidnapped for money.
[5]
The Officer started by noting that she was
excluding statements and evidence related to (i) establishment in Canada and
(ii) the IAD’s decision, as both of these matters fell outside the scope of a
PRRA review.
[6]
The Officer analyzed the news articles submitted
by the Applicant and the websites from which they were drawn, and found that
the Applicant had provided insufficient objective evidence to indicate that he
would be at risk upon returning to India. The Officer placed low weight and low
probative value on the articles, and found that the articles failed to provide
enough information to demonstrate a link to the Applicant’s personalized risks.
[7]
Finally, the Officer considered publicly
available country condition evidence. She concluded that the Indian government
generally accepted the rights of individuals to repatriate to India and made positive findings regarding the government’s ability to protect its
citizens.
[8]
The Officer concluded that the Applicant had
adduced insufficient corroborative evidence to demonstrate that he faced a
personalized, forward-looking risk upon returning to India. She determined that
on the basis of all the evidence before her, there was no nexus to any
Convention ground, and no serious possibility that the Applicant would suffer
persecution under section 96 or be subject to a risk or danger under section
97.
IV.
Submissions of the Parties
[9]
The Applicant submits that the Officer erred in
the following ways:
A.
The Officer ignored and unreasonably gave little
weight to the documentary evidence submitted by the Applicant. Specifically,
the Officer’s failure to reveal the research she conducted in reaching her
conclusion that the websites were not credible renders the Decision unreviewable,
robbing it of intelligibility and transparency.
B.
The Officer failed to conduct a risk assessment
in relation to the specific risk alleged, because her entire analysis focused
on whether the Indian government allowed freedom of movement and allowed
citizens abroad to return, which was entirely unrelated to the risk asserted by
the Applicant. An analysis of state protection can only take place in relation
to a specific type of individual and specific type of harm.
[10]
The Respondent submits that there is no reasonable
interpretation of the evidence that could lead one to conclude that NRIs have a
well-founded fear of persecution and that state protection is inadequate. The
evidence is deficient. With respect to the Applicant’s submissions above, the
Respondent submits that:
A.
The Officer referenced the Applicant’s
documentary evidence, but found it insufficient to support the alleged risk of
persecution. The Officer also had concerns about the reliability of the
websites from which the Applicant obtained the articles.
B.
The Officer then reviewed the section of the
U.S. Department of State Report (US DOS Report) that discussed repatriation to India. If the problems alleged by the Applicant were as pervasive as he alleged, they would
have been found in this section.
[11]
The Applicant argues that the Respondent’s
submissions are an attempt to provide new reasons that are not found in the
decision. Newfoundland and Labrador Nurses’ Union v Newfoundland and Labrador (Treasury Board), 2011 SCC 62 [NL Nurses] invites courts to supplement
the reasons, not to re-cast them (Pathmanathan v MCI, 2013 FC 353 at
para 28). Further, the Applicant argues that just as the Court of Appeal found
in Lemus v MCI, 2014 FCA 114 at paras 27-38, this Court should favour
the approach discussed in Alberta (Information and Privacy Commissioner) v
Alberta Teachers’ Association, 2011 SCC 61 in this kind of case.
V.
Standard of Review
[12]
Both parties agree, as do I, that PRRA decisions
are reviewable on a standard of reasonableness (Dunsmuir v New Brunswick,
2008 SCC 9 at para 62; Chekroun v MCI, 2013 FC 737 at para 36). In a
reasonableness review, the Court is concerned with the existence of
justification, transparency and intelligibility within the decision-making
process, as well as with whether the decision falls within a range of possible,
acceptable outcomes which are defensible in respect of the facts and law (Dunsmuir
at para 47).
[13]
As inadequate reasons are no longer an
independent ground on which a reviewing court can quash a decision, the Court
should only intervene if, when the reasons provided are read in the context of
the entire record, the decision falls outside of the range of possible,
acceptable outcomes which are defensible in respect of the facts and law (NL
Nurses, above, at para 14).
[14]
Certainly, deference is not a blank cheque, and
there must be “reasoned reasons” leading to a
justifiable finding (Giron v MCI, 2013 FC 7 at para 15, citing Njeri
v MCI, 2009 FC 291 at para 12). However, the Supreme Court of Canada has
directed reviewing courts to review the reasons together with the outcome, and
to pay respectful attention to the reasons that “could be
offered in support of a decision” (Newfoundland Nurses at paras
12, 14; Dunsmuir at para 48).
[15]
While this direction is not a “carte blanche to reformulate a tribunal’s decision in a way
that casts aside an unreasonable chain of analysis in favour of the court’s own
rationale for the result” (Alberta Teachers, above, at para 54),
it does allow the Court to look to the record in order to draw logical inferences
that were implicit to the result but were not expressly drawn (Komolafe v
MCI, 2013 FC 431 at paras 10-11).
VI.
Analysis
[16]
I do not agree with the Applicant that the
Officer’s decision was unreasonable, or that the reasons were inadequate.
[17]
I acknowledge that the Officer, in undertaking
research on the quality of the information provided, could have explained how
she arrived at the conclusion that the websites and sources were “not credible, unbiased or objective”, and how she came
to the conclusion that “they post stories found from
other random websites and those provided by the general audience”
(Decision, Certified Tribunal Record, p 6). However, the Officer considered
the US DOS Report and preferred it over the documents submitted by the
Applicant. While it would have been preferable for her to detail how she
determined that the sources presented were less reliable, the fact that she did
not do so is not fatal to the decision.
[18]
Ultimately, I agree with the Respondent that the
Applicant’s real complaints in this case are the weight given to the evidence
and the sufficiency of the reasons. The Officer did not ignore the Applicant’s
claimed risk. Rather, she concluded that the Applicant had provided
insufficient objective evidence to indicate that he would be at risk upon
returning to India. Her reasons were short, but in my view, quite sufficient.
The Officer preferred the US DOS Report, which did not corroborate the fear
claimed by the Applicant. In order for the Applicant to be successful, he
would need to provide sufficient objective evidence that there is a serious
possibility he would suffer either persecution under section 96, or a risk of
cruel and unusual treatment or punishment under section 97. He did not do so.
[19]
The test for reasonableness is a highly
deferential one in the circumstances, and I find that the Officer’s conclusions
were well within the range of possible, acceptable outcomes. I do not feel
that the reasons were inadequate: they covered the ground necessary to deal
with the issues and the alleged risks.
VII.
Conclusion
[20]
The Applicant’s counsel ably argued that the
Officer’s reasons lacked intelligibility and transparency. However, based on a
review of the full record, I am not persuaded that the Officer erred in this
case.
[21]
No questions were raised for certification.
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